One of the issues in writing and creating law is that you invariably leave loopholes or gaps. This is not intentional but the drafting of laws can be so complex that invariably something is left out. This is why we have lawyers, to interpret the law and to hopefully try and get it right and come up with answers which the legislators actually intended.
One of the issues that was left open with regard to Rome II is that whilst all of the above is clear, it was not clear whether I as a successful Claimant, would be entitled to recover damages that equate to French damages or damages that I would ordinarily receive if the accident had happened in this country.
The difference is great. French damages are not as generous and neither is the costs position. In this Country we are in the advantageous position and rightly so in my view since it has certainly stood the tests of time, that the loser pays the successful party’s costs in litigation.
We have taken some steps towards clarifying this issue of damages and costs for what is generally called a foreign accident. Whilst there was some indication that damages might be based on the compensation system we have in this Country, I understand that the current position is that the level of compensation is based on the damages recoverable in the Country where the accident occurred.
I am entitled in addition, to recover my costs in that the losing party pays the winning party’s costs which are based upon costs that would be assessed in this Country.
Any liability issues and again quite rightly, must however be dealt with in France. If therefore I was in part to blame for the accident, any French laws relating to contributory negligence will need to apply and I may in such circumstances, have to instruct French lawyers to clarify any liability issues.All this makes sense. It lessens the burden upon the Claimant considerably which again was the intention and it also makes matters easier for insurance companies who can then deal directly with the claim and ensure that they are properly represented.
This all therefore goes some way towards the codification of laws. Whether it actually takes a huge step or a small step forward is in my view, another matter.
Tristan Hallam is a Principal Lawyer in Personal Injury in the London office of Slater and Gordon Lawyers. If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046 or contact us online and one of our specialist personal injury team will review your compensation claim for free.